In re 1650 Cases of Seized Liquor
Annotate this Case
In re 1650 Cases of Seized Liquor (97-349); 168 Vt. 314; 721 A.2d 100
[Filed 11-Sep-1998]
NOTICE: This opinion is subject to motions for reargument under
V.R.A.P. 40 as well as formal revision before publication in the Vermont
Reports. Readers are requested to notify the Reporter of Decisions,
Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801
of any errors in order that corrections may be made before this opinion
goes to press.
No. 97-349
In re 1650 Cases of Seized Liquor Supreme Court
On Appeal from
District Court of Vermont
Unit No. 3, Washington Circuit
May Term, 1998
David T. Suntag, J.
William H. Sorrell, Attorney General, and William Griffin, Chief
Assistant Attorney General, Montpelier, for Plaintiff-Appellee.
Russell D. Barr, Daniel A. Seff and William L. Durrell, Law
Offices of Russell D. Barr, Stowe, for Defendant-Appellant.
PRESENT: Dooley, Morse, Johnson and Skoglund, JJ., and Corsones,
D.J. Specially Assigned
DOOLEY, J. The Saint Regis Mohawk Tribe appeals from a decision
of the Washington District Court forfeiting 1,650 cases of liquor the
Tribe was transporting through the State of Vermont without a liquor
control permit. See 7 V.S.A. § 63(a). The Tribe presents several
arguments as to why the Tribe's liquor could not be seized and forfeited
under Vermont's liquor control enforcement statutes. See id.
§§ 561-601. We affirm.
The Tribe employed a California liquor broker (Manormead) to purchase
1650 cases of liquor from Jenkins Spirits Corp., a Londonderry, New
Hampshire distiller. The liquor was purchased free on board and thus
title passed to the Tribe when the common carrier (Advantage Transportation
Inc.) picked up the liquor from Jenkins Spirits. On April 12, 1996,
during transport of the liquor to the Tribe's reservation in Messina,
New York, the truck was stopped by the Vermont State Police on
Interstate 89 near Middlesex,
Vermont. The truck did not have a permit to transport alcohol as
required by 7 V.S.A. § 63(a), and the bill of lading
indicated that the liquor was being shipped to Manormead in Santa
Barbara, California and not to the Tribe's reservation in Messina,
New York. The Department of Liquor Control (DLC) determined that
the "spirituous liquor" was being transported unlawfully and seized the
liquor pursuant to 7 V.S.A. § 561(a) - (b). On April 16, 1996,
the State filed a forfeiture complaint arguing that the liquor should be
forfeited pursuant to 7 V.S.A. § 568 because the Tribe lacked a
permit pursuant to section 63(a). The Tribe opposed forfeiture arguing
primarily that the truck had a valid bill of lading and that an
unwritten Liquor Control Board (LCB) policy allowed a bill of lading
to substitute for a transport permit. The State then amended its
complaint to allege that the truck's bill of lading could not
substitute for a transport permit because it did not state the real
destination of the liquor.
The case went forward to an evidentiary hearing on June 11, 1996,
with the Tribe arguing that (1) the liquor shipment complied with
the LCB's rule that a bill of lading may substitute for a section 63(a)
permit; (2) the LCB's characterization of its bill-of-lading rule amounts
to an unconstitutional ex-post-facto law; (3) transportation of liquor
without a permit is not a "use contrary to law" within the meaning of 7
V.S.A. § 568 and, therefore, could not serve as the basis for a
forfeiture; (4) innocent ownership is a defense to a liquor forfeiture
proceeding arising out of an alleged permit violation; (5) section 568
is unconstitutionally vague; and (6) the forfeiture of the liquor is an
unconstitutionally excessive fine against the Tribe.
On June 18, 1997, the court issued its decision and order, holding
that the bill of lading in this case did not satisfy the LCB
requirements as a substitute for a section 63(a) transport permit. The
court determined that the bill of lading did not properly include the
name of the receiver/consignee and did not specify the place the
freight was to be delivered. Thus, the court found that the liquor was
being transported unlawfully and further found that liquor being
transported unlawfully was subject to forfeiture by the State. This
appeal followed.
First, the Tribe argues that the liquor was not illegally
transported because the truck
driver had a valid bill of lading. The statute central to this argument
is 7 V.S.A. § 63(a), which provides:
(a) All spirituous liquors imported into this state shall be imported
by and through the liquor control board. A person, partnership,
association or corporation importing or causing to be imported into
this state any spirituous liquors shall be imprisoned not
more than one year, or fined more than $1,000.00 or both. However,
it shall be lawful for a person to import or transport spirituous
liquor into this state by first obtaining a permit from the liquor
control board and a person may import or transport not more than
eight quarts of spirituous liquors into this state in his or her own
private vehicle or in his or her actual possession at the time
of such importation without permit.
Although the statute requires the transporter to obtain a permit from
the LCB, the board has adopted a policy that allows a complying bill
of lading to serve as a permit. According to the testimony of the
director of enforcement of the DLC and minutes of a January 17, 1996 LCB
meeting, a bill of lading is considered a substitute for a section
63(a) permit for transport through Vermont to a destination outside
Vermont if the bill of lading contains (1) a description of the freight
being shipped, (2) the name and address of the shipper (consignor), and
(3) the name of the consignee and the place freight is to be delivered.
As indicated in the statement of facts, the truck in this case had
a bill of lading describing the liquor that was seized. The bill of
lading described the consignee as Manormead and the destination as its
office in Santa Barbara, California, although the recipient was actually
the Tribe and the delivery was to be made to its reservation in
Messina, New York. Because the bill of lading failed to accurately
describe the consignee or the place of delivery, the DLC determined
that it did not comply with the LCB policy and that the Tribe had
violated 7 V.S.A. § 63(a).
The Tribe argues that the bill of lading was accurate and that the
liquor shipment was simply diverted from Manormead to the Tribe as is
authorized by § 7-303 of the Uniform Commercial Code, 9A V.S.A.
§ 7-303, which provides:
Section 7-303. Diversion; reconsignment; change of instructions
(1) Unless the bill of lading otherwise provides, the carrier may
deliver the goods to a person or destination other than that stated
in the bill or may otherwise dispose of the goods on instructions from
(a) the holder of a negotiable bill; or
(b) the consignor on a non-negotiable bill notwithstanding
contrary instructions from the consignee; or
(c) the consignee on a non-negotiable bill in the absence of
contrary instructions from the consignor, if the goods have
arrived at the billed destination of if the
consignee is in possession of the bill; or
(d) the consignee on a non-negotiable bill if he is entitled as
against the consignor to dispose of them.
Therefore, the Tribe asserts, a bill of lading need not disclose the
true or actual place of delivery as long as the reason for the
discrepancy is that the freight was diverted pursuant to 9A V.S.A.
§ 7-303(1). See id., Official Comment 1 (diversion is very common
commercial practice); see generally J. White & R. Summers, Uniform
Commercial Code § 29-3, at 347 (4th ed. 1995) ("the beauty of
7-303 is that it recognizes the facts of life . . . . Under Section 7-303
the carrier can determine who is authorized to instruct the carrier to
divert or the like").
The Tribe misses the point of the LCB enforcement policy. It does
not state that any valid bill of lading will substitute for a transport
permit. Instead, it states that a bill of lading that meets three
requirements will substitute for a transport permit. The fact that
the trucker was carrying a valid bill of lading is irrelevant to
compliance with the LCB policy, unless the bill of lading met the
specific requirements of the policy. Thus, section 7-103 of the
U.C.C., 9A V.S.A. § 7-103, confirms that the provision of the
article on documents of title is subject to any regulatory statute of
the state, or any regulation issued pursuant to a regulatory statute.
The Tribe argues, however, that diversion of goods is not
inconsistent with the enforcement policy because the bill of lading
properly described the relationship between the shipper and the
purchaser, in this case Jenkins Spirits Corp. and Manormead, and
that the LCB enforcement policy required no more. Relying on the
wording of the enforcement policy, and the testimony of the DLC
enforcement director, the trial court held that the bill of lading must
state the actual place of delivery, and the one covering the liquor failed
to do so.
In resolving this issue, we first emphasize that the Tribe is not
arguing that it complied with the statute by obtaining a transport
permit. Nor is it attacking the validity of the LCB enforcement
policy which goes beyond the statute. Thus, we assume the policy is
valid, and the only question we resolve is whether the Tribe fit within
it.
The enforcement policy is essentially a regulation. We apply the
same rules of statutory construction to a regulation as we do to a
statute. See Rogers v. Watson, 156 Vt. 483, 490, 594 A.2d 409, 413
(1991). We defer to an agency's construction of its own regulation.
See In re Towle, 164 Vt. 145, 152, 665 A.2d 55, 61 (1995). Here, the
court's construction of the enforcement policy as requiring that the
bill of lading state the actual place of delivery is consistent with
the plain meaning of the words of the policy. See Carter v. Gugliuzzi,
9 Vt. L.W. 149, 150 (1998) (in absence of definition in statute, words
are given their plain meaning). Moreover, the DLC director of enforcement
testified the enforcement policy has always required that the bill of
lading indicate the actual destination of the liquor shipment. The
court properly relied on this testimony.
We also agree with the trial court that the purpose of Vermont's
liquor control statutory scheme would be undermined by the Tribe's
interpretation of the enforcement policy. Section 63(a)'s permit
requirement is intended to help prevent the illegal transportation,
sale and distribution of alcohol in the State of Vermont. See 7
V.S.A. § 1 (purpose of liquor control statute is to protect public
welfare, good order, health, peace, safety, and morals). A bill of
lading that does not indicate where the liquor is being delivered, or
to whom, may establish rights between the owner and the shipper, but it
does not give the necessary information to determine compliance with
liquor control laws. Thus, in Carter v. Virginia, 321 U.S. 131, 135
(1944), the United States Supreme Court upheld as reasonable a Virginia
requirement that a bill of lading for liquor show the true consignee and
destination to prevent unlawful diversion. The freedom the Tribe
seeks, to divert the liquor to any destination and recipient
chosen by
the purchaser, would make impossible effective monitoring of liquor
transportation to ensure the liquor is not distributed or used unlawfully.
Next, the Tribe argues that the enforcement policy, as construed
by the trial court, represents an unconstitutional expost facto law.
Assuming this constitutional defect can apply to an enforcement policy
that liberalizes a regulatory statute, we do not believe it applies here.
For a statute or regulation to be an unconstitutional ex-post-facto
law, it must be (1) retrospective, and (2) it must disadvantage the
offender affected by it. See Miller v. Florida, 482 U.S. 423, 430
(1987). Based on the evidence before it, the trial court found
that its interpretation of the enforcement policy was consistent
with application of the policy in the past, and, thus, was not
retrospective. The Tribe offered no contrary evidence. The court's
findings and conclusion are supported by the evidence and must be
affirmed.
The Tribe next asserts that the relevant statute does not allow
forfeiture of liquor where the sole ground asserted by the State is
that the liquor is being transported through Vermont without a
permit. As discussed above, 7 V.S.A. § 63(a) makes it unlawful
to import spirituous liquor into Vermont without a permit. The
trial court held that Section 63(a) was violated in this case, and we
have affirmed this holding above. The issue, then, is whether this
violation can give rise to forfeiture of the imported liquor.
Chapter 19 of Title 7 is titled "Enforcement" and provides remedies
to enforce the rest of the liquor control title. 7 V.S.A. §
561(b) gives a law enforcement officer the power to arrest a person who
the officer finds is "unlawfully . . . transporting spirituous
liquor, " and requires the officer to "seize the liquors . . . in the
possession of the person." The statutes then provide two alternative
procedures for seizing and forfeiting spirituous liquor. For purposes
of simplification, we can define one procedure as applicable in cases of
unlawful sale or possession, see id. §§ 563-570, and the
other in cases of smuggling or unlawful transportation, see id.
§§ 571-575. In the former case, the spirituous liquor
and "the owner and keeper and all persons having the custody of, or
exercising any control over, the liquor or property seized" are
brought
before a magistrate, 7 V.S.A. § 566, who decides whether the
property will be forfeited in accordance with the following provision:
If, upon hearing, it appears that such liquor or other property
was intended for sale, distribution, or use contrary to law it shall
be adjudged forfeited and condemned. When liquor or other property is
adjudged forfeited and condemned under this section, it shall be
turned over to the commissioner of liquor control for the
benefit of the state.
7 V.S.A. § 568.
The alternative procedure involves both the spirituous liquor
and the motor vehicle or other instrument of transport. The law
enforcement officer must seize both the spirituous liquor and the
instrument of transport and arrest the person in charge of transport.
See id. § 571. The matter is presented to a district judge and
[t]hereupon the same proceedings shall be had as to such liquor or
alcohol and such . . . motor vehicle . . . as would be had if . . .
spirituous liquors had been seized, except that if such
vehicle . . . shall be finally adjudged forfeited and condemned the
same, upon the written order of the magistrate, shall be sold
at public sheriff's sale for the benefit of the state.
Id. § 572.
Defendant argues that the statutory scheme does not authorize
the forfeiture of spirituous liquor unless it "was intended for
sale, distribution, or use contrary to law" as provided in § 568
and illegally transported liquor does not fit within that description.
The State argues illegal transport of liquor is "use contrary to law."
As an example, it relies on Commonwealth v. Stofchek, 180 A. 84, 85 (Pa.
Super. Ct. 1935), which holds in a similar context that "[t]he word
'use,' as it appears in the title, should be construed in a
comprehensive sense, embracing, not only the consumption, using up,
acquiring, storing, but also the keeping or possessing of, liquor."
We agree with the State, and the trial court, but for a different
reason.
Our goal in statutory construction is to implement the intent
of the Legislature. See Shea v. Metcalf, ___ Vt. ___, ___, 712 A.2d 887, 889 (1998). We consider the purpose of the statute and look to
the broad subject matter of the law, it effects, consequences and reason
and
spirit of the law. See Merkel v. Nationwide Ins. Co., 166 Vt. 311,
314, 693 A.2d 706, 707-08 (1997). We "review the history and the
entire framework of the statute." Secretary, Agency of Natural Resources
v. Upper Valley Reg'l Landfill Corp., ___ Vt. ___, ___, 705 A.2d 1001, 1009 (1997).
The enforcement statutes were enacted at the same time, see 1934, No.
1, §§ 41, 48 (Spec. Sess.), and embody two complementary
forfeiture procedures. Both involve seized liquor. In this context, the
limit in section 568 to "property . . . intended for sale, distribution
and use contrary to law" is understandable because it provides a remedy
for cases of unlawful sale or possession. Thus, we agree with defendant
that "use contrary to law" was not intended to include unlawful
transportation.
We conclude, however, that the scope of the forfeiture remedy for
cases of smuggling or unlawful transportation is broad enough to allow
forfeiture in this case. That remedy is provided in the second
sentence of section 572, as quoted above. The sentence is somewhat
confusing because, by its terms, it applies as "if malt or vinous
beverages or spirituous liquors had been seized" and, yet, can be
invoked only if such beverages or liquors have actually been seized. We
take the quoted clause to be an adoption by reference to the procedure in
Section 568.(FN1) We believe this is the only way to understand the
sentence in the context of the entire statutory scheme. As a result,
the remedy of forfeiture is applicable to spirituous liquor which is
"being smuggled, delivered or transported contrary to law." Id. §
571.
Three additional reasons support this construction of section
572. First, although section 572 is titled as a forfeiture
statute, it nowhere explicitly provides for that remedy, except by
its adoption by reference in section 568. Thus, the adoption by
reference is necessary for section 572 to accomplish its purpose.
Second, the exception in the second sentence of section 572 makes
sense only as an
exception to the general rule stated in section 568. Thus, section
568 provides that forfeited property is turned over to the commissioner
of liquor control for the benefit of the State, but section 572 excepts
the transportation instruments from this rule and requires that these be
sold by a sheriff.
Finally, this construction makes the grounds for forfeiture of
liquor coextensive with the grounds for seizure of liquor. The
statutory scheme suggests no reason why the Legislature would authorize
seizure of liquor in certain circumstances, but not provide for its
forfeiture.(FN2) For example, the statutes do not provide for the return
of property which had been seized because it was illegally transported.
Defendant's construction of the statute leaves seized liquor in limbo
with no clear specification of its disposition.
We are not persuaded by defendant's argument that because illegal
transport of spirituous liquor is also a crime under 7 V.S.A.
§§ 63(a) and 652, the Legislature did not intend that
the liquor be forfeited. Proceedings against the person charged with
a violation of the liquor laws and those against the property seized
are separate and distinct. See United States v. One Assortment of 89
Firearms, 465 U.S. 354, 363 (1984); One Lot Emerald Cut Stones v.
United States, 409 U.S. 232, 237 (1972). Forfeiture of contraband is
a civil in rem action that is intended to take the product out of the
stream of commerce, rather than to punish the person who owns or
possesses the product. See One Assortment of 89 Firearms, 465 U.S. at
364. Thus, the Legislature's decision to make illegal transport of
liquor a crime does not preclude forfeiture of the illegally
transported liquor or suggest that the Legislature intended that
forfeiture not be available as a sanction.
Next, the Tribe argues that even if the liquor was subject to
forfeiture, this remedy
should not be invoked against the Tribe because the independent shipper
(Advantage) was responsible for obtaining a section 63(a) permit or
ensuring that a proper bill of lading was on board the truck. In
arguing for an innocent owner defense to forfeiture, the Tribe relies
on the language of section 568 that forfeiture is authorized only if the
liquor is "intended for sale, distribution or use contrary to law."
See 7 V.S.A. § 568 (emphasis added). It argues that because it
had no intent to conduct any of these activities, an innocent owner
defense protects it from the transgressions of its independent shipper.
The trial court rejected this argument because the Legislature did not
explicitly establish this defense for owners of seized alcohol, as it has
for the innocent owners of vehicles used in the illegal transport of
liquor. See 7 V.S.A. § 574.
Much of the force of the Tribe's argument is reduced by our holding
that forfeiture is authorized by section 572. Thus, the grounds for
forfeiture include illegal transport, see id. § 571, and the
intent language on which the Tribe relies is inapplicable. We also
agree with the trial court, however, that the explicit provision of an
innocent owner defense solely for the owner of the conveyance of liquor
being illegally transported demonstrates that the Legislature did not
intend such a defense for the owner of the liquor. See Grenafege v.
Department of Employment Sec., 134 Vt. 288, 290, 357 A.2d 118, 120
(1976) (under precept of "expressio unius est exclusio alterius," where
Legislature imposed restriction in part of the legislative scheme,
and none in other parts, "where it did not say so it intended no such
restriction").
Next, the Tribe contends that section 568 is unconstitutionally
vague and the court erred in forfeiting the Tribe's liquor under it.
As we held above, the State's right of forfeiture is based on section
572, which has its own grounds. Thus, the Tribe's attack on the
vagueness of the language of section 568 is misdirected.
We recognize, however, that the Tribe is unlikely to find
sufficient specificity in section 572, and it would have
challenged that statute had it been aware that we would rely on it.
Indeed, we acknowledged that the statute is ambiguous and arrived at
its meaning as a best fit
for the statutory scheme. Thus, we address the merits of the Tribe's
challenge.
The basic constitutional principle is described in Grayned v. City
of Rockford, 408 U.S. 104, 108 (1972):
It is a basic principle of due process that an enactment
is void for vagueness if its prohibitions are not clearly defined. Vague
laws offend several important values. First, because we assume that man
is free to steer between lawful and unlawful conduct, we insist that
laws give the person of ordinary intelligence a reasonable
opportunity to know what is prohibited, so that he may act
accordingly. Vague laws may trap the innocent by not providing
fair warning. Second, if arbitrary and discriminatory enforcement is
to be prevented, laws must provide explicit standards for those
who apply them.
(Footnotes omitted). Although the constitutional rule may apply in
civil contexts the "test is less strict where the regulation is
economic and the [aggrieved party] . . . can seek
clarification of its meaning or resort to administrative
processes." Rogers v. Watson, 156 Vt. at 491, 594 A.2d at 414.
We need not dissect the statutory language in this case because
we conclude that the constitutional prohibition does not apply to this
challenge. The Tribe is not arguing that the relevant prohibition is
vague, but instead that the remedy statute is vague. The Tribe
argues that a person of common intelligence could not determine from
the statute whether the liquor was subject to forfeiture. The Tribe
does not challenge that it knew, or should have known, that transport
of liquor through Vermont without a bill of lading that complied with
the LCB policy was unlawful. Thus, it was fully able to conform to the
legal standard and did not face a trap for the innocent.
We see no reason to extend the void-for-vagueness rule to the scope
of a remedy. The owner of the liquor is fully able to determine whether
its conduct is lawful and can obtain advice from the State in making
this determination. It stretches the limits of due process to require
that it also know in advance the possible remedies if it chooses to
violate the law. Indeed, although prosecutorial and law enforcement
discretion in defining what is criminal is undesirable, we do
grant prosecutors broad discretion in determining what remedy to pursue.
Finally, the Tribe argues that forfeiture of the liquor
represents an excessive fine in violation of the Eighth Amendment to the
United States Constitution. The Eighth Amendment provides that
"[e]xcessive bail shall not be required, nor excessive fines imposed, nor
cruel and unusual punishments inflicted." U.S. Const. amend. VIII.
The Tribe argues that seizure and forfeiture of all 1,650 cases of
liquor, valued at approximately $100,000, is not proportional to the
offense as required by United States v. Bajakajian, 118 S. Ct. 2028,
2037 (1998) (amount of punitive forfeiture may not be grossly
disproportionate to gravity of offense).
Whether a forfeiture is subject to Eighth Amendment analysis turns
on whether the forfeiture is a punishment or is remedial. See Austin v.
United States, 509 U.S. 602, 619-22 (1993); Tellevik v. Real
Property Known as 6717 100th Street S.W., 921 P.2d 1088, 1092 (Wash.
Ct. App. 1996). As the Supreme Court explained in Austin, the states
and federal government took from the English law the in rem civil
forfeiture proceeding. See 509 U.S. at 613. This proceeding is based on
the legal fiction that the "'the thing is primarily considered the
offender.'" See id. at 615 (quoting J.W. Goldsmith, Jr., -- Grant Co.
v. United States, 254 U.S. 505, 511 (1921)). The statutory scheme in
this case involves the use of an civil in rem proceeding, brought by
the State, to forfeit liquor, property used to transport liquor and
other related property. See 7 V.S.A. §§ 568, 572.
Austin teaches, however, that the characterization of the
proceeding as civil does not exempt forfeitures from the
restrictions of the Eighth Amendment's excessive fines clause. The
Supreme Court held that civil forfeitures which are intended to punish,
in whole or in part, are subject to the clause. See 509 U.S. at 622. It concluded that in the case before it the forfeiture of real
property used to facilitate the commission of a drug crime was punitive
in part and subject to the excessive fines clause. See id.
The trial court in this case distinguished Austin and held that the
civil forfeiture of the illegally transported liquor is not punishment
because the statute does not give the owner a
defense based on innocence, the illegally transported liquor has become
contraband, and the forfeiture remedy is part of a scheme to control the
transport and delivery of liquor in Vermont. Part of this analysis
relies on Austin's holding that "we have recognized that the
forfeiture of contraband itself may be characterized as remedial because
it removes dangerous or illegal items from society." Id. at 621.
The Austin analysis was recently applied in Bajakajian, where the
government sought forfeiture of $357,144 that defendant sought to take
from the United States without reporting it. The applicable
statute provided that a person convicted of the crime of willful
failure to report exported currency in excess of $10,000 would
forfeit to the United States property involved in the offense. The
Supreme Court held that the forfeiture of all the money being exported
without reporting involved punishment and violated the excessive fines
clause. See 118 S. Ct. at 2039.
In Bajakajian, the government proceeded against the defendant
based on a criminal conviction. The Court found "[t]he forfeiture serves
no remedial purpose, is designed to punish the offender, and cannot be
imposed upon innocent owners." Id. at 2035. It held that in
personam forfeitures of the type before it involve punishment and are
subject to the excessive fines clause. In reaching this result, the Court
carefully distinguished in rem civil forfeiture proceedings in which the
government proceeded against the property rather than an individual.
If the State were proceeding against the truck used to transport
the liquor, we would agree with the Tribe that the excessive fine
clause applies because the Legislature has provided an innocent owner
defense for the transporter, 7 V.S.A. § 574, and the property is
not the regulated liquor. We conclude, however, that the forfeiture in
this case is wholly remedial and not subject to the clause.
This case involves an in rem civil forfeiture proceeding as
distinguished in Bajakajian and the type of property distinguished in
Austin. The State proceeded against the liquor and not its owner. The
Tribe has not been charged with a crime. The fact that the Tribe is an
innocent owner of the liquor is not a defense. The property is the
instrumentality of the crime. See
Bajakajian, 118 S. Ct. at 2036 (instrumentality is sine qua non of
crime); cf. Beer House Distrib., Inc. v. Huddleston, 854 S.W.2d 881,
883-84 (Tenn. Ct. App. 1992) (where beer wholesaler could not sell brand
of beer it possessed, beer was contraband). The value of the property can
be viewed as liquidated damages for the costs to the State of enforcing
its liquor control laws. See Payne v. Sheets, 75 Vt. 335, 349, 55 A. 656,
661 (1903) (monetary forfeiture "[u]nder the statute . . . is given
to the party aggrieved not as a penalty, but as cumulative damages
for his injuries suffered"). We hold that under Austin and
Bajakajian, the forfeiture is remedial, rather than punitive, and not
subject to the excessive fines clause of the Eighth Amendment.
Affirmed.
FOR THE COURT:
_______________________________________
Associate Justice
-------------------------------------------------------------------------------
Footnotes
FN1. The sentence would be clear if the word "alone" appeared
after the word "seized." Even without this word, we conclude that the
intent is the same.
FN2. Although it is not determinative in this context, we note that
most states provide for the forfeiture of liquor transported without
a permit or proper bill of lading. See, e.g., Colo. Rev. Stat. Ann.
12-47-906 (1997); La. Rev. Stat. Ann. 26:368, 26:372 (West 1989);
Mass. Gen. Laws Ann. ch. 138, 30H, 50 (West 1991) (originally enacted
in 1933, prior to Vermont's statute); N.H. Rev. Stat. Ann. 179:2,
179:3 (1990).
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